Extended judicial custody without trial and lack of evidence of possession justify bail under Section 439 Cr.P.C.

Order :

1. This fourth application for bail under Section 439 Cr.P.C . has been filed by the petitioner who has been arrested in connection with FIR No.114/2020 registered at Police Station Balesar, District Jodhpur Rural, for offences under Sections 8/15 and 25 of the NDPS Act.

2. Learned counsel submitted that as per the prosecution, on 01.06.2020 during nakabandi, a team of Police Station Balesar flagged down a truck having registration No.RJ-19-GG-0277. On search being made, the police team recovered contraband (poppy husk/straw) weighing 844.300 Kgs from 41 sacks. The petitioner was arrested during the course of investigation.

3. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in this case. Learned counsel submitted that the contraband in the present case was not recovered from the conscious possession of the present petitioner. Learned counsel further submitted that though a perusal of the impugned order dated 30.07.2024, it appears that apart from the present case, there are two other cases of similar nature pending against the petitioner, however, he has been acquitted in the case No.NCB/viii(10)3/NCB/ASZ/2080 by the competent criminal Court and the matter pertaining to the FIR No.74 of 2014 registered at Police Station Dechu has wrongly been mentioned in the impugned order. Learned counsel submitted that the petitioner is in judicial custody since 02.06.2020. He further submitted that till date, out of total 22 cited prosecution witnesses, only 2 prosecution witnesses have been examined before competent Criminal Court. He further submitted that the delay in trial is not at all attributable to the petitioner. He submitted that the petitioner is in judicial custody since last more than 04 years 08 months and looking to the pace at which trial is being conducted against the present petitioner, the same is not likely to be concluded in near future.

4. In support of his contention, learned counsel for the petitioner placed reliance on the cases of Rabi Prakash Vs. State of Orisa (Leave to Appeal (Criminal) No.4169/2023 and Mohd Muslim @ Hussain Vs. State (NCT of Delhi) in Special Leave Petition (Crl.) No(s).915 of 2023 On these grounds, he implored the Court to enlarge the petitioner on bail.

5. Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that petitioner is facing trial for the offence under the NDPS Act and, therefore, the present bail application deserves to be rejected straightway. Learned Public Prosecutor, however, was not in position to refute the fact that in last more than 04 years 08 months, out of total 22 cited prosecution witnesses, only 2 prosecution witnesses have been examined till date.

6. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the material available on record.

7. Having considered the rival submissions, facts and circumstances of the case and considering the fact that the contraband was not recovered from the present petitioner and he has suffered incarceration for more than 04 years 08 months and out of total 22 cited prosecution witnesses, only 2 prosecution witnesses have been examined till date, thus without expressing any opinion on merits/demerits of the case, this Court is of the opinion that the bail application filed by the petitioner deserves to be accepted.

8. Accordingly, the fourth bail application under Section 439 Cr.P.C . is allowed and it is ordered that the accused-petitioner- Jagdish Chandra S/o Sh. Bhagirath Ram shall be enlarged on bail in connection with FIR No.114/2020 registered at Police Station Balesar, District Jodhpur Rural, provided he furnishes a personal bond in the sum of Rs.1,00,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to so.

9. In case, the petitioner remains absent on any date of hearing or mak